ITO, New Delhi V. M/s. SAB Miller India Ltd., New Delhi

ITA 1011/DEL/2012

• Counselvise Citation: 101120114 RSA 2012
• Duration Of Justice: 9 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-12-2012
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: G
• Next Hearing Date: 01-10-2012
• Assessment Year: 2003-2004
• Appeal Filed On: 29-02-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SATPAL SINGH
• Assessee Lawyers: AKSHAY ANAND; AKASH UPPAL
• Keywords: Assessment record
• Section: 244A; 115JB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH G: NEW DELHI BEFORE SHRI R.K. GUPTA, JUDICIAL MEMBER AND SHRI S.V. MEHROTRA, ACCOUNTANT MEMBER ITA NO. 1011/DEL/2012 ASSESSMENT YEAR: 2003-04 ITO, WARD 7(1), ROOM NO. 305, C.R. BLDG., NEW DELHI. VS. SAB MILLER INDIA LTD., C/O, AMAR CHAND MANGALDAS & SURESH A SHROFF & CO., NO. 13, ABDUL FAZAL ROAD, BENGALI MARKET, NEW DELHI. AAECS8102L (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI SATPAL SINGH, SR. DR RESPONDENT BY: SH. AKASH UPPAL & SH. AKSHAY ANAND, AR O R D E R PER S.V. MEHROTRA, A.M. THIS APPEAL FILED BY THE REVENUE IS DIRECTED AGAIN ST THE ORDER OF LD. CIT(A) DATED 30/12/2011 FOR A.Y. 2003-04. 2. THE ASSESSEE COMPANY, IN THE RELEVANT ASSESSMENT YEAR, WAS ENGAGED IN THE BUSINESS OF INVESTING IN EXISTING BR EWERIES IN INDIA AND PROVIDING TECHNICAL, MANAGERIAL AND CONSULTANCY SER VICES TO ITS SUBSIDIARIES. THE ASSESSEE FILED RETURN OF INCOME DECLARING NIL I NCOME UNDER NORMAL PROVISIONS OF THE ACT. THE BOOK PROFITS OF THE COM PANY WERE COMPUTED U/S 115JB OF THE INCOME TAX ACT AT RS. 82,01,310/- AND SEVEN AND A HALF PERCENT OF SUCH BOOK PROFITS WAS RS. NIL, AS PER TH E STATEMENT OF FACTS FILED ITA NO. 1011/D/ 2012 2 BEFORE LD. CIT(A) BY THE ASSESSEE. THEREFORE, THE ASSESSEE FILED ITS RETURN OF INCOME UNDER THE NORMAL PROVISIONS OF THE ACT AND C LAIMED A REFUND OF RS. 10,63,445/- BEING TAX DEDUCTED AT SOURCE. 3. THE ASSESSING OFFICER COMPLETED THE ASSESSMENT U NDER NORMAL PROVISIONS OF THE ACT AT RS. 1,41,28,246/-, INTER-A LIA, MAKING FOLLOWING ADDITIONS: - I) INCOME IN RESPECT OF DIFFERENCE IN TDS CERTIFICA TES RS. 80,88,000/-; II) DISALLOWANCE OUT OF PROVISIONS FOR EXPENSES RS. 47,80,510/-. 4. LD. CIT(A) WHILE PARTLY ALLOWING THE ASSESSEES APPEAL, DELETED THE ADDITION OF RS. 80,88,000/- ON ACCOUNT OF DIFFERENC E IN RECEIPTS AS PER TDS CERTIFICATES AND THOSE CREDITED TO PROFIT & LOSS A/ C AND ALSO DELETED THE ADDITION OF RS. 5,63,390/- OUT OF RS. 47,80,510/- M ADE BY THE AO ON ACCOUNT OF PROVISION OF EXPENSES. 5. BEING AGGRIEVED WITH THE ORDER OF LD. CIT(A), TH E DEPARTMENT IS IN APPEAL BEFORE US. 6. GROUND NO. 1 READS AS UNDER: - 1. THE LD. COMMISSIONER OF INCOME TAX (APPEALS) ERRED, IN LAW AND ON THE FACTS OF THE CASE, IN DELE TING THE ADDITION OF RS. 80,88,000/- MADE BY THE AO ON ACCOU NT OF DIFFERENCE IN RECEIPTS AS PER TDS CERTIFICATE AND T HOSE CREDITED TO PROFIT & LOSS ACCOUNT. ITA NO. 1011/D/ 2012 3 7. BRIEF FACTS APROPOS THIS ISSUE ARE THAT THE AO N OTICED THAT THERE WAS DISCREPANCY OF INCOME AMOUNTING TO RS. 80,88,000/- AS REPORTED IN THE AUDITED FINANCIAL STATEMENTS AND AS PER TDS CERTIFI CATE. THE ASSESSEE EXPLAINED THAT IT BEING THE HOLDING COMPANY HAD HIR ED THE NECESSARY RESOURCES SUCH AS HUMAN RESOURCES, BACK UP SUPPORT ON ACCOUNTING AND FINANCIAL MATTERS, ETC. DURING THE YEAR, IT EXECUT ED A COST SHARING AGREEMENT WITH ITS SUBSIDIARY I.E. MYSORE BREWERIES LTD. TO P ROVIDE THE AFORESAID SERVICES. IN RETURN, MYSORE BREWERIES LIMITED AGRE ED TO REIMBURSE THE COST INCURRED BY THE ASSESSEE COMPANY FOR THE RESOURCES MADE AVAILABLE TO IT FOR ITS OPERATIONS ON THE BASIS OF TIME AND EFFORT SPEN T BY THE RESOURCES HIRED BY THE ASSESSEE COMPANY. IN THIS AGREEMENT IT HAD BEE N SPECIFICALLY MENTIONED THAT ASSESSEE COMPANY SHALL ISSUE DEBIT N OTE IN FAVOUR OF MYSORE BREWERIES LIMITED GIVING DETAILS OF THE COST ALLOCA TED TO IT. DURING THE YEAR UNDER CONSIDERATION, THE ASSESSEE HAD RAISED DEBIT NOTES AMOUNTING TO RS. 3,35,85,000/- ON MYSORE BREWERIES LIMITED IN TERMS OF SAID ARRANGEMENT. THE TDS CERTIFICATE ISSUED BY M/S MYSORE BREWERIES LIMITED ALSO SHOWED THAT TAX AT SOURCE WAS DEDUCTED ON TOTAL PAYMENT MA DE TO THE ASSESSEE AMOUNTING TO RS. 3,35,85,000/-. THE TAX SO DEDUCTE D HAD ALSO BEEN DEPOSITED INTO GOVERNMENT ACCOUNT RELEVANT FOR THE YEAR UNDER CONSIDERATION. THE ASSESSEE ALSO SUBMITTED THAT A CREDIT NOTE OF RS. 80,88,000/- WAS RAISED ON M/S MYSORE BREWERIES LIMI TED AS THE VARIOUS DEBIT NOTES ISSUED WERE IN EXCESS BY SUCH AN AMOUNT . THE SUBMISSION OF ITA NO. 1011/D/ 2012 4 ASSESSEE WAS THAT IT WAS ONLY A CLERICAL MISTAKE OF THE PART OF M/S MYSORE BREWERIES LIMITED IN ISSUING A TDS CERTIFICATE SHOW ING THE INFLATED AND WRONG FIGURE. A CONFIRMATION TO THIS EFFECT WAS A LSO FILED FROM M/S MYSORE BREWERIES LIMITED. THE AO DID NOT ACCEPT THE ASSES SEES CONTENTION, INTER- ALIA, OBSERVING AS UNDER: - THE FACT HOWEVER REMAINS THAT TAX AT SOURCE HAS BEEN DEDUCTED AT TOTAL INCOME OF RS. 3,35,85,000/- WHICH MUST HAVE BEEN ACCOUNTED FOR BY M/S MYSORE BREWERIE S LTD. IN THE YEAR UNDER CONSIDERATION. THIS IS ALSO A FACT THAT THE ASSESSEE HAS CLAIMED TDS ON THE ENTIRE SUM OF RS. 3,35,85,000/- WHILE ONLY THE RECEIPTS SHOWN FRO M M/S MYSORE BREWERIES LTD. ARE TO THE TUNE OF RS. 2,54,97,000/-. UNDER THE INCOME TAX ACT, INCOME OF A PARTICULAR PERIOD IS ASSESSABLE IN THE ASSESSMENT Y EAR TO WHICH IT RELATES. EVERY ASSESSMENT YEAR IS A SEPAR ATE ENTITY. AS PER SECTION 199 OF THE INCOME-TAX ACT C REDIT FOR TAX DEDUCTED AT SOURCE HAS TO BE GIVEN IN RESPE CT OF THE INCOME SHOWN IN THAT ASSESSMENT YEAR. AS THE ASSESSEE HAS CLAIMED ENTIRE TDS FOR THE YEAR UNDER CONSIDERATION THE SUM OF RS. 80,88,000/- IS TAXABLE FOR THIS ASSESSMENT YEAR. THE CONFIRMATION FILED BY TH E ASSESSEE FROM M/S MYSORE BREWERIES LTD. IS ONLY AN INTERNAL ARRANGEMENT AND DOES NOT DESERVE TO BE REL IED UPON AS A CONCRETE EVIDENCE IN ITS FAVOUR. HE, ACCORDINGLY, MADE AN ADDITION OF RS. 80,88,000/ -. ITA NO. 1011/D/ 2012 5 8. BEFORE LD. CIT(A), THE ASSESSEE REITERATED THE S UBMISSIONS MADE BEFORE ASSESSING OFFICER AND FURTHER SUBMITTED THAT THERE WERE NO PROVISIONS UNDER THE ACT FOR ISSUANCE OF REVISED TDS CERTIFICA TE AND, THEREFORE, THE CLERICAL MISTAKE COMMITTED AT THE END OF MYSORE BRE WERIES LIMITED COULD NOT BE CORRECTED BY ISSUING REVISED TDS CERTIFICATE. T HE ASSESSEE RELIED ON THE DECISION OF HONBLE DELHI HIGH COURT IN THE CASE OF SUDHIR SEKHRI VS. ACIT 2010-TIOL-277-HC-DEL-IT, WHEREIN IT WAS, INTER-ALIA , HELD THAT WHERE THE ISSUER OF THE CERTIFICATE HAD CERTIFIED THAT THE MI STAKE HAD CREPT IN DUE TO THE PRE-FED COMPUTER PROGRAMME AND CERTIFIED THAT NO OT HER CHARGES OTHER THAN WHAT WAS REFLECTED IN THE BOOKS OF ACCOUNT OF THE A SSESSEE HAD BEEN PAID TO THE ASSESSEE, THE ADDITION WAS NOT JUSTIFIED MERELY ON THE BASIS OF DISCREPANCY IN THE TDS CERTIFICATE AND AMOUNT RECOR DED IN THE BOOKS OF ACCOUNT. 9. LD. CIT(A) AFTER CONSIDERING THE ASSESSEES SUBM ISSIONS DELETED THE ADDITION, INTER-ALIA, OBSERVING IN PARA 3.11 AS UND ER: - THIS APPEARS TO BE A BONAFIDE AND INADVERTENT MIST AKE, BEING ADMITTED BY BOTH THE SIDES AND HAVING NO TAX IMPLICATIONS, SINCE IT IS NOT THE CASE OF THE AO TH AT HIGHER EXPENDITURE HAS BEEN ALLOWED IN MBLS HAND WHEREAS LOWER RECEIPTS HAVE BEEN SHOWN IN THE APPELLANTS H AND. THEREFORE, THE DIFFERENTIAL AMOUNT BETWEEN THE AMOU NT SHOWN IN THE TDS CERTIFICATE AND THE AMOUNT ACTUALL Y PAID/RECEIVED ON THAT COUNT, CANNOT BE BROUGHT TO T AX, SOLELY ON THE GROUND THAT THE TDS CERTIFICATE DISCL OSE THE ITA NO. 1011/D/ 2012 6 AMOUNT AS HAVING BEEN CREDITED TO THE APPELLANTS ACCOUNT. 10. HE, ACCORDINGLY, HELD THAT THE ACTUAL REIMBURSE MENT COMPONENT RECEIVED BY THE ASSESSEE DURING THE YEAR WAS RS. 2, 54,97,000/- AND NOT RS. 3,35,85,000/-, AS DISCLOSED IN THE TDS CERTIFICATE. 11. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PARTIES AND HAVE PERUSED THE RECORD OF THE CASE. 12. ADMITTEDLY, AS PER TDS CERTIFICATE ISSUED BY MY SORE BREWERIES LIMITED, THE TOTAL REIMBURSEMENT MADE TO THE ASSESSEE AS PER THEIR NEWLY ARRANGEMENT WAS RS. 3,35,85,000/-. HOWEVER, IN THE BOOKS OF ASSESSEE, IT WAS ONLY RS. 2,54,97,000/-. THE ASSESSEE HAD EXPLA INED THAT A CREDIT NOTE OF RS. 80,88,000/- ISSUED BY IT IN FAVOUR OF MYSORE BREWERIES LIMITED WAS NOT ACCOUNTED FOR BY THEM AND, THEREFORE, BY THIS AMOUN T THEY HAD SHOWN HIGHER REIMBURSEMENT TO ASSESSEE. THE CONTENTION OF THE AS SESSEE WAS THAT IT WAS A CASE OF CLERICAL ERROR COMMITTED BY SUBSIDIARY MY SORE BREWERIES LIMITED WHICH WAS DULY CONFIRMED BY MYSORE BREWERIES LIMITE D. 13. UNDER SUCH CIRCUMSTANCES, WE FIND THAT THE DECI SION OF HONBLE DELHI HIGH COURT IN THE CASE OF SUDHIR SEKHRI (SUPRA) IS SQUARELY APPLICABLE TO THE FACTS OF THE CASE AND, THEREFORE, THE ADDITION OF R S. 80,88,000/- WAS WHOLLY UNWARRANTED. WE, ACCORDINGLY, CONFIRM THE ORDER OF LD. CIT(A) ON THIS ISSUE. 14. IN THE RESULT, THE GROUND NO. 1 IS DISMISSED. ITA NO. 1011/D/ 2012 7 15. GROUND NO. 2 READS AS UNDER: - 2. THE LD. CIT(A) ERRED IN LAW AND ON THE FACTS O F THE CASE IN DIRECTING THE AO TO ALLOW CREDIT OF RS. 84, 924/- BEING TDS ON THE AMOUNT OF RS. 80,88,000/- ADDITION OF WHICH HAS BEEN DELETED BY HIM. 16. THE ISSUE FOR CONSIDERATION IS WHETHER THE TDS AMOUNT ATTRIBUTABLE TO RS. 80,88,000/- WHICH WORKS OUT TO RS. 84,924/-, SH OULD BE ALLOWED AS A CREDIT OF TAX TO THE ASSESSEE, WHEN THE INCOME COMP ONENT WAS NEITHER BEING ADMITTED, NOR WAS BEING OFFERED TO TAX. 17. BEFORE LD. CIT(A), THE ASSESSEE HAD RELIED ON F OLLOWING DECISION: - I) SANDVIK ASIA LTD. VS. CIT (2006), 280 ITR 643 & II) CIT VS. LEAR AUTOMOTIVE INDIA LTD., ITA NO. 11 0/2010 DATED 05/02/2010. 18. LD. CIT(A) AFTER CONSIDERING BOTH THESE DECISIO NS HELD THAT BOTH WERE NOT APPLICABLE BECAUSE THE DECISION OF HONBLE SUPR EME COURT WAS RENDERED WITH REFERENCE TO INTEREST ON INTEREST PAYABLE U/S 244 AND THE DECISION OF HONBLE DELHI HIGH COURT WAS PER INCURIUM BECAUSE THE RELEVANT CIRCULARS OF THE CBDT ON THE ISSUE OF GRANT OF REFUND OF AMOUNTS PAID IN EXCESS OF TAX DEDUCTED AND/ OR DEDUCTIBLE, HAD NOT BEEN CONSIDERE D. HE REFERRED TO CIRCULAR NO. 285 DATED 21/10/1980 AND CIRCULAR NO. 2/2011 DATED 27/04/2011 AND POINTED OUT THAT IN THE FIRST CIRCUL AR DATED 21/10/1980 IT HAS BEEN PROVIDED THAT WHERE EXCESS AMOUNT HAD BEEN DED UCTED, THE SAME CAN ITA NO. 1011/D/ 2012 8 BE CLAIMED AS A REFUND BY FOLLOWING PROCEDURE LAID DOWN IN THE SAID CIRCULAR. HE FURTHER POINTED OUT THAT IN THE SUBSEQUENT CIRCU LAR NO. 2/2011 DATED 27/04/2011 MADE APPLICABLE TO CLAIMS OF REFUND UPTO 31/03/2010, IT HAS BEEN PROVIDED THAT DEDUCTOR CAN SEEK REFUND OF EXCESS TD S MADE UNDER THE FOLLOWING CIRCUMSTANCES: - I. IT IS A CASE OF GENUINE ERROR AND THAT THE ERROR HAD OCCURRED INADVERTENTLY; II. THAT THE TDS CERTIFICATE FOR THE REFUND AMOUNT REQU ESTED HAS NOT BEEN ISSUED TO THE DEDUCTEE AND; III. THAT THE CREDIT FOR THE EXCESS AMOUNT HAS NOT BEEN CLAIMED BY THE DEDUCTEE(S) IN THE RETURN OF INCOME OR THE DEDUCTEE(S) UNDERTAKES NOT TO CLAIM SUCH CREDIT. 19. HE, THEREFORE, CONCLUDED THAT THE EXCESS TDS MA DE BY THE DEDUCTOR COULD NOT BE CLAIMED AS A REFUND SINCE IT HAD ALREA DY ISSUED A TDS CERTIFICATE TO THE ASSESSEE AND THE ASSESSEE-DEDUCT EE HAD ALSO CLAIMED A REFUND OF THIS EXCESS AMOUNT IN ITS RETURN OF INCOM E. 20. LD. CIT(A), THEREAFTER EXAMINED WHETHER THE ASS ESSEE DEDUCTEE COULD SEEK A REFUND ON PRINCIPLES OF EQUITY, UNJUST ENRIC HMENT AND THE GENERAL PRINCIPLE THAT THE GOVERNMENT WAS NOT ELIGIBLE TO R ETAIN ANY PAYMENT BY WAY OF TAX BEYOND THE LIABILITY IN THIS ACCOUNT, AND, I NTER-ALIA, OBSERVED AS UNDER: - IN FACT THE CBDT CIRCULAR NO. 14(XL-35) DATED 11/04/1995 ALSO EXHORTS THE AOS TO ASSIST IN EVERY REASONABLE WAY THE CLAIM REFUND OF EXCESS TDS. THE RELEVANT PORTION OF CIRCULAR IS REPRODUCED HEREUNDE R: ITA NO. 1011/D/ 2012 9 OFFICERS OF THE DEPARTMENT MUST NOT TAKE ADVANTAGE OF IGNORANCE OF AN ASSESSEE AS TO HIS RIGHTS. IT IS O NE OF THEIR DUTIES TO ASSIST A TAXPAYER IN EVERY REASONAB LE WAY, PARTICULARLY IN THE MATTER OF CLAIMING AND SEC URING RELIEFS AND IN THIS REGARD THE OFFICERS SHOULD TAKE THE INITIATIVE IN GUIDING A TAXPAYER WHERE PROCEEDINGS OR OTHER PARTICULARS BEFORE THEM INDICATE THAT SOME RE FUND RELIEF IS DUE TO HIM. THIS ATTITUDE WOULD, IN THE LONG RUN, BENEFIT THE DEPARTMENT, FOR IT WOULD INSPIRE CONFID ENCE IN HIM THAT HE MAY BE SURE OF GETTING A SQUARE DEAL FR OM THE DEPARTMENT. ALTHOUGH, THEREFORE, THE RESPONSIB ILITY FOR CLAIMING REFUNDS AND RELIEFS RESTS WITH THE ASS ESSES ON WHOM IT IS IMPOSED BY LAW, OFFICERS SHOULD (A) DRAW THEIR ATTENTION TO ANY REFUND OR RELIEFS TO WHICH THEY APPEAR TO BE CLEARLY ENTITLED BUT WHICH THEY H AVE OMITTED TO CLAIM FOR SOME REASON OR OTHER; (B) FREELY ADVISE THEM WHEN APPROACHED BY THEM AS TO THEIR RIGHTS AND LIABILITIES AND AS TO THE PROCEDUR E TO BE ADOPTED FOR CLAIMING REFUNDS AND RELIEFS. FOLLOWING THE CIRCULARS ISSUED BY CBDT COUPLED WITH THE FACT THAT DEDUCTOR I.E. MBL CANNOT CLAIM REFUND OF EXCESS TDS, THE AO IS DIRECTED TO GRANT THE CREDIT OF EXCESS TDS OF RS. 84,924/- WHILE GIVING EFFECT TO T HIS APPELLATE ORDER. HOWEVER, THIS REFUND IS ARISING F OR REASONS OF MISTAKES/ERROR COMMITTED ON THE PART OF THE DEDUCTOR AS WELL AS DEDUCTEE. IN FACT, REASONS ARE ATTRIBUTABLE MOSTLY TO THE ASSESSEE. THEREFORE, TH E AO IS DIRECTED NOT TO GRANT INTEREST U/S 244A OF THE I.T. ACT TO THE ASSESSEE ON ACCOUNT OF REFUND ARISING ON ADJUDI CATION ITA NO. 1011/D/ 2012 10 OF THIS ISSUE. HE IS DIRECTED TO WITHHOLD SUCH INT EREST IN TERMS OF 244A(2) OF I.T. ACT. 21. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PARTIES AND HAVE PERUSED THE RECORD OF THE CASE. 22. WE ARE OF THE OPINION THAT THIS ISSUE IS SQUARE LY COVERED BY THE DECISION OF HONBLE DELHI HIGH COURT IN THE CASE OF LEAR AUTOMOTIVE INDIA LTD. (SUPRA), WHEREIN IT HAS BEEN HELD THAT CREDIT IS TO BE ALLOWED TO THE DEDUCTEE IN RESPECT OF TDS MADE ON HIGHER AMOUNT OF REIMBURSEMENT THAN WAS ACTUALLY OFFERED TO TAX. THE CBDT CIRCULAR NO. 2/2011 DATED 27/04/2011 REFERRED TO BY LD. CIT(A) WHICH PROVIDES THAT THE DEDUCTOR COULD SEEK REFUND OF EXCESS TDS UNDER CERTAIN CIRCUMSTANC ES CANNOT TAKE AWAY THE SUBSTANTIVE RIGHT OF DEDUCTEE TO CLAIM REFUND O F EXCESS TAX DEDUCTED FROM ITS INCOME. ONCE THE TDS CERTIFICATE HAS BEEN ISSUED BY DEDUCTOR HE CANNOT CLAIM REFUND OF THE AMOUNT DEDUCTED BECAUSE THE TAX DEDUCTED PRIMARILY CONSTITUTES INCOME OF DEDUCTEE AND HE CAN ONLY CLAIM THE REFUND OF THE AMOUNT. WE, THEREFORE, RELYING ON THE DECISION OF HONBLE DELHI HIGH COURT UPHOLD THE CONCLUSION OF LD. CIT(A). 23. IN THE RESULT, THIS GROUND IS DISMISSED. 24. GROUND NO. 3 READS AS UNDER: - 3. THE LD. CIT(A) ERRED IN LAW AND ON THE FACTS O F THE CASE IN DELETING THE ADDITION OF RS. 5,63,390/- OUT OF RS. 47,80,510/- MADE BY THE AO ON ACCOUNT OF PROVISION OF EXPENSES, IN CONTRAVENTION OF RULE 46A OF THE INCOM E TAX RULES, 1962. ITA NO. 1011/D/ 2012 11 25. BRIEF FACTS APROPOS THIS ISSUE ARE THAT THE AO HAD REQUIRED THE ASSESSEE TO SUBMIT THE INVOICES/VOUCHERS FOR RS. 47 ,80,510/-. HOWEVER, THE ASSESSEE SHOWED ITS INABILITY TO PRODUCE THE SAID I NVOICES SUBMITTING THAT THE RELEVANT DOCUMENTS WERE NOT AVAILABLE SINCE THE SAM E GOT MUTILATED/ DESTROYED WHILE SHIFTING OF OFFICE FROM DELHI TO BA NGALORE IN THE YEAR 2005. HE, THEREFORE, MADE A DISALLOWANCE OF RS. 47,80,510 /-. 26. BEFORE LD. CIT(A) THE ASSESSEE HAD SUBMITTED CO LLATERAL AND CIRCUMSTANTIAL EVIDENCE IN RESPECT OF PERSONNEL EXP ENSES AND AUDIT FEES AND IN THIS REGARD LD. CIT(A) HAS OBSERVED AS UNDER: - I) WITH REGARD TO LEAVE TRAVEL ALLOWANCE (RS. 2,54,672/-), PERQUISITES PROVIDED TO ITS EXPATRIATE EMPLOYEES (RS. 67,388/-) AND SALARY (RS. 31,192/-) TOTALING RS. 3,53,252/-. IT WAS SUBMITTED THAT THE Y FORM PART OF THE OVERALL SALARY PAYMENT OF RS. 3,24,32,7 92/- DEBITED TO PROFIT & LOSS A/C IN ORDER TO PROVE THAT THIS EXPENDITURE HAS ACTUALLY BEEN INCURRED BY THE APPEL LANT COMPANY AND THAT THE TAX HAS BEEN DEDUCTED ON THE S AME, THEY BROUGHT MY ATTENTION TO THE RECEIPT ISSUED BY THE E- FILING ADMINISTRATOR OF THE DEPARTMENT I.E. NATIONA L SECURITY DEPOSITORY LTD. VIDE RECEIPT NO. 5280 DATE D 31/03/2004 WHEREIN, PROOF OF TDS ON SALARY PAYMENT OF RS. 3,78,81,904/- IS AVAILABLE. I HAVE GONE THROUG H THE ASSESSMENT RECORDS AND I FIND THAT THIS PARTICULAR DOCUMENT HAS ALSO BEEN SUBMITTED BEFORE THE AO WHO HAD NOT ACCEPTED THE SAME AS SUFFICIENT PROOF. AS A ITA NO. 1011/D/ 2012 12 CIRCUMSTANTIAL PROOF, THIS DOCUMENT PASSES MUSTER A ND I AM INCLINED TO ACCEPT THIS CIRCUMSTANTIAL EVIDENCE IN SUPPORT OF ITS CLAIM OF SALARY EXPENSES. II) WITH REGARD TO THE AUDIT FEE, FOR WHICH PROVISI ON OF RS. 2,10,138/- WAS CREATED IN THE BOOKS OF THE A SSESSEE AND NECESSARY DEDUCTION HAD BEEN CLAIMED, THE APPEL LANT HAS SUBMITTED A BILL FOR RS. 3,94,347/- VIDE BILL N O. ADB- 101/04 DATED 12/06/2003 ISSUED BY PRICE WATERHOUSE MENTIONING THAT THE SAME IS CLAIMED TOWARDS STATUTO RY AUDIT FEE. SINCE THIS DOCUMENTARY PROOF HAS BEEN SUBMITTED, SO FAR AS THE CLAIM OF RS. 2,10,138/- TO WARDS PROVISION FOR AUDIT FEE IS CONCERNED, THE EVIDENC E SUBMITTED IS SATISFACTORY AND IS TAKEN AS A CIRCUMS TANTIAL EVIDENCE IN SUPPORT OF THE CLAIM OF DEDUCTION TO TH E EXTENT OF RS. 2,10,138/-. 27. THE DEPARTMENTS MAIN GRIEVANCE IS THAT LD. CIT (A) HAD ACCEPTED THE DETAILS IN CONTRAVENTION TO RULE 46A OF THE INCOME TAX RULES. 28. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS OF BOT H THE PARTIES AND HAVE PERUSED THE RECORD OF THE CASE. 29. AS FAR AS LD. CIT(A)S FINDINGS IN REGARD TO PE RSONNEL EXPENSES AGGREGATING TO RS. 3,53,252/- ARE CONCERNED, WE ARE OF THE OPINION THAT NO INTERFERENCE IS CALLED FOR WITH THE SAID FINDINGS B ECAUSE THE IMPUGNED AMOUNT WAS PART OF THE OVERALL SALARY PAYMENTS OF R S. 3,24,32,792/- DEBITED TO PROFIT & LOSS A/C. THEREFORE, THIS CANNOT BE SA ID TO BE NEW EVIDENCE BEFORE LD. CIT(A). HOWEVER, AS FAR AS PROVISION F OR AUDIT FEES OF RS. 2,10,138/- IS CONCERNED, WE FIND THAT THE ASSESSEE HAD SUBMITTED A BILL FOR ITA NO. 1011/D/ 2012 13 RS. 3,94,347/- VIDE BILL NO. ADB-101/04 DATED 12/06 /2003 ISSUED BY PRICE WATERHOUSE MENTIONING THAT THE SAME IS CLAIMED TOWA RDS STATUTORY AUDIT FEE. 30. WE FIND THAT THIS BILL WAS NOT BEFORE THE ASSES SING OFFICER AND, THEREFORE, IT WOULD BE IN THE INTEREST OF JUSTICE T HAT THE MATTER IS RESTORED BACK TO THE FILE OF AO FOR THE LIMITED PURPOSE OF EXAMIN ING THE BILL ISSUED BY PRICE WATER HOUSE IN ORDER TO EXAMINE ITS GENUINENESS. W E DIRECT ACCORDINGLY. 31. IN THE RESULT, THIS GROUND IS PARTLY ALLOWED FO R STATISTICAL PURPOSES. 32. IN THE RESULT, THE DEPARTMENTAL APPEAL IS PARTL Y ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 07/12/2012 SD/- SD/- (R.K. GUPTA) JUDICIAL MEMBER (S.V. MEHROTRA) ACCOUNTANT MEMBER DATED: 07/12/12 *KAVITA COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT, NEW DELHI. TRUE COPY BY ORDER ASSISTANT REGISTRAR